This week, SCOTUS ruled in Maryland v. King that the constitution is not violated when police, without a warrant, seize the DNA of an arrestee who has not been convicted of any crime. The 5-4 majority opinion of the Court was written by Justice Kennedy (joined by Roberts,Thomas, Alito and Breyer). Justice Scalia filed a scathing dissenting opinion (joined by Ginsburg, Sotomayor and Kagan).
The Court attributes to police the motivation of collecting DNA in order to identify the arrestee—just like fingerprinting or photographing in the booking process. Nod, nod, wink, wink. Unless the motivation is to identify the arrestee months later when the DNA processing is complete, this rationale fails to pass the straight face test. Clearly the goal of collecting DNA at the outset, rather than after securing a warrant or a conviction, is to search for evidence of a crime without sufficient justification for a warrant.
This ruling doesn’t bode well for the tattered remains of the Fourth Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."). Steven Benjamin, President of the National Association of Criminal Defense Lawyers, said of the decision: “Today, the Supreme Court essentially ruled that Americans’ homes and cars are more protected from warrantless searches than our bodies. How can this be?"
Justice Scalia wrote in his typically scorching dissent: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” But that was the dissent, so the majority decision went the other way. If the police want to swab your cheek, they swab your cheek. And into the database you go, to be compared to pending cases, future cases, and long past “cold” cases.
Justice Scalia wrote in his typically scorching dissent: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” But that was the dissent, so the majority decision went the other way. If the police want to swab your cheek, they swab your cheek. And into the database you go, to be compared to pending cases, future cases, and long past “cold” cases.
Why should you care? This is only going to apply to criminals, right? And what would be the downside to putting as many people as possible into the database? Maybe we’d all like to step up and volunteer to open our mouths for the royal swabbing. DNA is infallible, right? Wrong.
If you think you can stroll through your law abiding life with no risk that forensic evidence analysis will suddenly require you to defend yourself against the false accusation that you committed a serious crime, consider Brandon Mayfield, the Portland, Oregon lawyer erroneously matched to a fingerprint in the Madrid train bombings that killed 191 people. Consider Lukis Anderson, who was charged with murder despite an airtight alibi, based on an erroneous DNA match to evidence under the victim’s fingernails. The analysis was done by a DNA technician already involved in a crime lab scandal over bungled DNA and a subsequent cover up. Consider the 307 people in the United States who have been convicted, and then exonerated through the work of the Innocence Project, including 18 people who served time on death row and hundreds of others who served an average of 13 years in prison prior to exoneration. Faulty or unvalidated forensic science contributed to half of those wrongful convictions.
Properly conducted DNA analysis can be quite impressive. Validated, accurate, reliable, all that good white coat scientific method-y stuff. An erroneous DNA match is statistically rare, like winning the lottery. But people do hit the lotto jackpot. People who got to choose to buy a ticket.
Group of exonerees:
Group of lotto winners:
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